Citation Nr: 22035288 Decision Date: 06/16/22 Archive Date: 06/16/22 DOCKET NO. 20-27 348 DATE: June 16, 2022 ORDER The severance of service connection for bilateral eye cortical visual impairment with legal blindness was proper, and the appeal is denied. The severance of special monthly compensation (SMC) on account of bilateral eye blindness from October 7, 2013 was proper, and the appeal is denied. The severance of eligibility to Dependents' Educational Assistance (DEA) from October 7, 2013 was proper, and the appeal is denied. The severance of eligibility for automobile and adaptive equipment was proper, and the appeal is denied. The severance of eligibility for a special home adaptation grant was proper, and the appeal is denied. The severance of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders effective December 11, 2014 was improper, and the appeal is granted. The 50 percent rating for the Veteran's migraine headaches is restored, effective August 28, 2017. FINDINGS OF FACT 1. The evidence shows that the grant of service connection for the Veteran's bilateral eye cortical visual impairment with legal blindness was based on fraud. 2. The evidence shows that the grant of SMC on account of bilateral eye blindness from October 7, 2013 was based on fraud. 3. The evidence shows that the grant of Dependents' Educational Assistance from October 7, 2013 was based on fraud. 4. The evidence shows that the grant of automobile and adaptive equipment was based on fraud. 5. The evidence shows that the grant of a special home adaptation grant was based on fraud. 6. The evidence shows that grant of TDIU effective December 11, 2014 was not based on fraud or clear and unmistakable error. 7. The evidence of record at the time of the June 2018 reduction action did not establish actual improvement in the Veteran's ability to function under the ordinary conditions of life and work concerning migraine headaches. CONCLUSIONS OF LAW 1. The severance of service connection for bilateral eye cortical visual impairment with legal blindness was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.1(aa)(2), 3.103(b)(1), 3.105(d). 2. The severance of SMC on account of bilateral eye blindness from October 7, 2013 was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.1(aa)(2), 3.103(b)(1), 3.105(d). 3. The severance of Dependents' Educational Assistance from October 7, 2013 was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.1(aa)(2), 3.103(b)(1), 3.105(d). 4. The severance of automobile and adaptive equipment was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.1(aa)(2), 3.103(b)(1), 3.105(d). 5. The severance of a special home adaptation grant was proper. 38 U.S.C. § 501; 38 C.F.R. §§ 3.1(aa)(2), 3.103(b)(1), 3.105(d). 6. The severance of TDIU was improper. 38 U.S.C. § 501; 38 C.F.R. § 3.105(d). 7. The reduction of the rating for the Veteran's migraine headaches from 50 percent to 30 percent effective August 28, 2017 was improper. 38 U.S.C § 1155; 38 C.F.R. §§ 3.105(e); 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1997 to October 2013, to include service in Southwest Asia. His military decorations include the Combat Action Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of the Cleveland, Ohio Regional Office (RO). In November 2021, the Board remanded the appeal to the RO for additional action. The RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Severance Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) with the burden of proof being on the Government. 38 C.F.R. § 3.105(d). Service connection for any disability which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). 38 C.F.R. § 3.957. In addition, when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of those benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (2010). Fraud is defined in VA regulations as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 38 U.S.C. § 501; 38 C.F.R. § 3.1(aa)(2). Typically, when severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). Bilateral eye cortical visual impairment with legal blindness The Veteran asserts that the severance of service connection as to his bilateral eye cortical visual impairment with legal blindness was improper. The Board will deny the Veteran's appeal. In an October 2014 disability benefits questionnaire authored by Leila Vaghei, M.D., a non-VA examiner, the Veteran's visual acuity as to both eyes was 5/200 for uncorrected distance, uncorrected near, corrected distance, and corrected near. Dr. Vaghei opined that the Veteran's cortical visual impairment was caused by his service-connected traumatic brain injury (TBI). In a January 2015 letter, a VA optometrist opined that the Veteran "is legally blind secondary to cortical visual impairment from TBI." A January 2015 VA treatment record reflects the Veteran's report of being "legally blind" and having "no driver's license." During a September 2015 VA eye conditions examination, the Veteran's visual acuity as to both eyes was 5/200 for uncorrected distance, uncorrected near, corrected distance, and corrected near. The VA examiner opined that the Veteran's bilateral eye cortical visual impairment with legal blindness was caused by his service-connected TBI. In an October 2015 rating decision, the RO granted service connection for bilateral eye cortical visual impairment with legal blindness as secondary to service-connected posttraumatic stress disorder with TBI, previously evaluated as residuals of a TBI, and assigned an initial 100 percent rating effective October 7, 2013. The grant of service connection was not in effect for 10 or more years and 38 C.F.R. § 3.957 is therefore not applicable. In mid-August 2017, a VA-Office of Inspector General (OIG) Special Agent (SA) verified that the Veteran had a driver's license in the state of Kansas issued in late-January 2017 that expires in August 2023, and that the Veteran owned several motor vehicles. See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In late-August 2017, the VA-OIG SA found a comment on a social medial website in a forum titled "ATV/Dirt-bike Forum Kansas" posted by the Veteran in late-June 2016 asking about the location of trails where the Veteran could ride his dirt-bike and that he was "looking to make new friends and enjoy the trails." See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In late-August 2017, the VA-OIG SA conducted surveillance at a VA medical center and observed the Veteran's spouse guide the Veteran to his medical appointments. See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In late-August 2017, the VA-OIG SA spoke with a representative from the Kansas Department of Revenue who explained that the Veteran would have been required to pass a vision examination to receive his driver's license. The Kansas Department of Revenue representative indicated that the Veteran's driver's license had no restrictions nor a record that the Veteran wore prescription eyeglasses or contacts. See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In September 2017, the Veteran underwent a routine VA eye conditions re-examination with the same examiner who conducted the September 2015 VA eye conditions examination. The Veteran reported that the severity of his bilateral eye cortical visual impairment with legal blindness was unchanged since the September 2015 VA examination. The Veteran's visual acuity as to both eyes was 5/200 for uncorrected distance, uncorrected near, corrected distance, and corrected near. The examiner did not provide an answer to the question as to whether the Veteran had legal (statutory) blindness based upon visual field loss. The VA-OIG SA conducted surveillance during the Veteran's September 2017 VA reexamination. The SA observed the Veteran's spouse assist the Veteran before and during the examination by getting in-and-out of his chair, and navigating through the VA clinic. During the examination, the Veteran was observed as exhibiting signs of a person with low vision and making several statements pertaining to limitations due to his visual impairment. See VA-OIG Comprehensive Report of Investigation (January 12, 2018). From early-September 2017 to late-October 2017, the VA-OIG SA conducted further surveillance near the Veteran's residence and observed the Veteran operating motor vehicles, a tractor, lawnmower, and performing other various physical tasks in his yard "without exhibiting any overt signs of blindness." See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In mid-October 2017, a VA-OIG SA acted as an individual interested in purchasing a hauler trailer from the Veteran. During a face-to-face meeting at the Veteran's residence, the Veteran spoke to the SA and showed the SA the features of the hauler trailer. The Veteran was observed as "not exhibit[ing] any overt signs of blindness." See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In mid-October 2017, a VA-OIG SA interviewed the examiner who conducted the Veteran's September 2017 VA examination. The examiner reported that "everything looked fine and unremarkable" and several tests during the examination led the examiner to believe that the Veteran was malingering. The examiner indicated that the Veteran's vision reading was subjective, "what [the Veteran] states he can and cannot see," and that someone with the Veteran's subjective reports is "pretty blind because they cannot see anything on the eye chart." The examiner also reported that an individual with the Veteran's reported vision should "absolutely not" be able to operate vehicles, tractors, or other machinery and would need guided assistance while walking. The examiner stated that the Veteran "can see better than he is indicating based on tests that were conducted." See VA-OIG Comprehensive Report of Investigation (January 12, 2018). In May 2021, the Veteran pled guilty to an indictment charging a violation of 18 U.S.C. § 641: Theft of Government Property. The facts constituting the Veteran's guilty plea are as follows: "Between November 2013 and May 2018 in the District of Kansas, [the Veteran] knowingly converted to his use, benefits from [VA] related to the condition of cortical visual blindness by materially misrepresenting the symptoms and impairment caused by said condition. Based on these material misrepresentations, [VA] awarded increased benefits that [the Veteran] used for his personal benefit or the benefit of others. The Veteran acknowledges and admits that he materially misled the VA by exaggerating his vision related symptoms attributed to cortical visual blindness and the extent to which they impacted his daily function." On these facts, the Board finds that the Veteran made intentional misrepresentations of fact concerning the manifestations, symptoms, and severity of his bilateral eye cortical visual impairment with legal blindness for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentations may result in the erroneous award or retention of such benefits. The Veteran's actions therefore warrant the characterization of fraud as defined for VA purposes. 38 C.F.R. § 3.1(aa)(2). Having determined that the Veteran committed fraud, the Board does not need to address the provisions of 38 C.F.R. § 3.105 because the regulation does not apply in cases of fraud. Roberts v. Shinseki, 23 Vet. App. 416, 424-25 (2010). Therefore, the Board need not determine whether the original grant of service connection was based on CUE. However, the due process procedures applicable in cases of fraud are set forth in 38 C.F.R. § 3.103. The regulation provides that claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right to representation, and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(b)(1). The RO notified the Veteran of the proposed severance in March 2018. The notification was sent to the Veteran at his latest address of record and advised him of the contemplated action and furnished detailed reasons. He was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The March 2018 notice also informed the Veteran that he had the opportunity for a predetermination hearing if such request for a hearing was received by VA within 30 days from the date of the notice. The Veteran did not provide additional evidence nor requested a predetermination hearing. The RO issued the May 2018 rating decision, which severed service connection effective October 7, 2013. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in a June 2018 letter. Having met all the due process requirements in the severance of service connection under § 3.105(d), the RO complied with the procedural requirements applicable in cases of fraud under § 3.103. The original grant of service connection for bilateral eye cortical visual impairment with legal blindness was based on fraud on the part of the Veteran. Therefore, the severance of service connection for bilateral eye cortical visual impairment effective October 7, 2013, was proper. SMC on account of bilateral eye blindness, dependents' educational assistance, automobile and adaptive equipment, and special home adaptation grant In an October 2015 rating decision, the RO granted SMC on account of bilateral eye blindness from October 7, 2013; Dependents' Educational Assistance from October 7, 2013; automobile and adaptive equipment, and a special home adaptation grant. The Veteran became eligible for these ancillary benefits due to bilateral eye blindness based on the grant of service connection for bilateral eye cortical visual impairment with legal blindness rated 100 percent disabling from October 7, 2013. As to the grant of service connection for bilateral eye cortical visual impairment with legal blindness, including the grant of any ancillary benefits, the Veteran made intentional misrepresentations of fact concerning the manifestations, symptoms, and severity of his bilateral eye cortical visual impairment with legal blindness for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentations may result in the erroneous award or retention of such benefits, including ancillary benefits. The Veteran's actions therefore warrant the characterization of fraud as defined for VA purposes. 38 C.F.R. § 3.1(aa)(2). Having determined that the Veteran committed fraud, the Board does not need to address the provisions of 38 C.F.R. § 3.105 because the regulation does not apply in cases of fraud. Roberts v. Shinseki, 23 Vet. App. 416, 424-25 (2010). Therefore, the Board need not determine whether the grant of ancillary benefits was based on CUE. However, the due process procedures applicable in cases of fraud are set forth in 38 C.F.R. § 3.103. The regulation provides that claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right to representation, and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(b)(1). The RO notified the Veteran of the proposed severances as to his ancillary benefits in March 2018. The notification was sent to the Veteran at his latest address of record and advised him of the contemplated action and furnished detailed reasons. He was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The March 2018 notice also informed the Veteran that he had the opportunity for a predetermination hearing if such request for a hearing was received by VA within 30 days from the date of the notice. The Veteran did not provide additional evidence nor requested a predetermination hearing. The RO issued the May 2018 rating decision, which severed eligibility to ancillary benefits effective October 7, 2013. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in a June 2018 letter. Having met all the due process requirements in the severance of service connection under § 3.105(d), the RO complied with the procedural requirements applicable in cases of fraud under § 3.103. The grant of SMC on account of bilateral eye blindness, dependents' educational assistance, automobile and adaptive equipment, and a special home adaptation grant was based on fraud on the part of the Veteran. Therefore, the severance of SMC on account of bilateral eye blindness, dependents' educational assistance, automobile and adaptive equipment, and a special home adaptation grant effective October 7, 2013, was proper. TDIU In a rating decision dated May 15, 2015 with a notification date of May 28, 2015, the RO granted a TDIU due to the Veteran's service-connected migraine headaches, residuals of a TBI, and PTSD effective December 11, 2014. In a rating decision dated March 5, 2018 with a notification date of March 23, 2018, the RO proposed to sever TDIU because the January 2018 VA-OIG Comprehensive Report of Investigation "overwhelmingly shows that [the Veteran] does not have bilateral blindness and clearly has the ability to work." In a rating decision dated May 30, 2018 with a notification date of June 6, 2018, the RO severed TDIU effective December 11, 2014 because the January 2018 VA-OIG Comprehensive Report of Investigation "overwhelmingly shows that [the Veteran] does not have bilateral blindness and clearly has the ability to work." The rating decision that effectuated the severance of TDIU did not indicate that the grant of TDIU was due to any alleged fraud on behalf of the Veteran. Significantly, the Veteran was in receipt of TDIU prior to his grant of service connection for bilateral eye cortical visual impairment with legal blindness. The RO granted a TDIU in May 2015 and granted service connection for bilateral eye cortical visual impairment with legal blindness in October 2015. As noted, the January 2018 VA OIG Comprehensive Report of Investigation pertains to fraud committed by the Veteran in obtaining service connection for bilateral eye cortical visual impairment with legal blindness and although the OIG report contains evidence of employability and/or unemployability due to the Veteran's fraudulent bilateral eye disorder, such evidence is irrelevant and does not constitute fraud for purposes of a TDIU because the original grant of TDIU was based on the Veteran's service-connected migraine headaches, residuals of a TBI, and PTSD. Therefore, the Board must address whether the original grant of TDIU was based on clear and unmistakable error (CUE). 38 C.F.R. § 3.105; Roberts v. Shinseki, 23 Vet. App. 416, 424-25 (2010). To establish CUE, VA must show that: (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth, 20 Vet. App. at 487-88; cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). The January 2018 VA-OIG report contains evidence of employability and/or unemployability due to the Veteran's fraudulent bilateral eye disorder, however, such evidence is irrelevant and does not constitute CUE because the original grant of TDIU was based on the Veteran's service-connected migraine headaches, residuals of a TBI, and PTSD. Regardless of the Veteran's later patent dishonesty regarding his visual impairment claims, VA has not met its burden of demonstrating CUE in the May 2015 rating decision granting TDIU; therefore, severance of TDIU was improper, and the appeal to restore TDIU is granted, effective from the date of severance December 11, 2014 Rating Reduction Migraine Headaches VA regulations allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after VA follows certain procedural guidelines. 38 C.F.R. § 3.105(e). VA is required in any rating-reduction case to determine based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; whether the examination reports reflecting such change are based upon thorough examinations; and whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). VA must comply with regulations applicable to rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect and that even where the assigned rating is less than five years old, improvement in a veteran's ability to function must still be shown under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The burden is on VA to establish by a preponderance of the evidence that the rating reduction was warranted and that there was actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned diagnostic code. Id. The Veteran's 50 percent rating for migraine headaches was in effect from October 7, 2013, less than five years, when the RO proposed the rating reduction on March 23, 2018, and in a rating decision dated May 30, 2018 with a notification date of June 6, 2018, effectuated the rating reduction on August 28, 2017. The Veteran does not contend, and the evidence does not reflect, any non-compliance with the procedural requirements for rating reductions. Therefore, and given the Board presently grants the appeal, the Board will focus only on whether the facts warrant a rating reduction. In the May 2018 rating decision on appeal, the RO found that the Veteran's lay statements during the August 2017 VA examination concerning "severe economic inadaptability" was "erroneous" compared to the evidence of economic inadaptability in the January 2018 VA-OIG report indicating that the "evidence overwhelmingly shows [that the Veteran] does not have economic inadaptability due to migraine headaches." Under diagnostic code (DC) 8100, the terms "productive of severe economic inadaptability" has not been clearly defined by regulations or case law. 38 C.F.R. § 4.124a, DC 8100. "Productive of" can either have the meaning of producing or capable of producing. Thus, migraines need not actually produce severe economic inadaptability to assign a 50 percent rating. "Economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to unemployability. 38 C.F.R. § 4.16; Pierce v. Principi, 18 Vet. App. 440 (2004). Migraine headaches in this instance must be, at a minimum, capable of producing severe economic inadaptability. The January 2018 VA-OIG report shows that the Veteran's spouse was interviewed by VA-OIG special agents and the Veteran's spouse reported that the Veteran has migraines due to his service-connected TBI. There is no other mention of migraines in the VA-OIG report. However, the VA-OIG report reflects evidence of unemployability due to the Veteran's fraudulent bilateral eye disorder and the RO interpreted such evidence of unemployability to mean "economic inadaptability." Additionally, the RO's finding that the Veteran lacked economic inadaptability reflects a failure in meeting the requirements of DC 8100. The RO's rating reduction was not based on any actual improvement in the Veteran's ability to function under the ordinary conditions of life and work concerning the Veteran's migraine headaches. The appeal will be granted and the rating restored. The evidence does not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. The RO interpreted the evidence of unemployability in the January 2018 VA-OIG report to mean "economic inadaptability." Additionally, the RO's finding that the Veteran lacked economic inadaptability reflects a failure in meeting the requirements of DC 8100. Therefore, the RO's rating reduction was not warranted, and the prior rating of 50 percent is restored, effective August 28, 2017. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.